The owners of two businesses declared nuisances for selling synthetic marijuana took their cases to the Seventh District Court of Appeals on Wednesday.
The appeals from the Shadyside Party Center and Fred's Party Center in Martins Ferry were heard by Judges Joe Vukovich, Gene Donofrio and Cheryl Waite. Dennis W. McNamara represented the establishments while Assistant Attorney General Charissa D. Payer spoke for the state.
Stacey McCabe-Heathcote, owner of the Shadyside establishment, was ordered to cease operations for one year. During proceedings, McNamara said there was no dispute the products were sold, or that after the date of the March search warrant they were not sold again, though the business remained open while the case was pending. He argued the offense was not ongoing, and that closing a business for one year was only mandated under certain conditions that were not met in this situation. He said other sentencing options were available.
Waite said the owner had been urged to take the packets off the shelf in a March 7 letter, but put them back in circulation at inflated prices. McNamara said the owner had talked to a lawyer who advised her to continue selling them. She did so for several weeks at the same inflated prices. He said the letters only stated that illegal substances may be present.
McNamara said there had still been some reason in his client's mind to believe the substances were legal.
"The nuisance was past-tense before there was ever a trial. It ended in March," McNamara said, pointing out the damage done to a merchant by the order to close the store.
He said it should be a last resort, not a first resort. Payer said the nuisance did not have to occur at the same time of the hearing for the court to apply the one-year closure.
"The substances we are talking about here are synthetic drugs, and synthetic drugs are a very new problem. They're a very dangerous problem," she said. "They're coming out constantly, and by just tweaking one little thing the chemist can put something new out there. It is important to make sure the court's order is followed in this case."
She added the products are not handled in the way of traditional drugs. They are sold in the open with the packaging as the disguise.
"That's what makes these products so difficult to watch. That's what makes the abatement order that the court put in place, although it sounds harsh, it's the correct order because of the dangerousness of these products," Payer said.
In the matter of Fred's Party Center, Martins Ferry City Council voted in January not to renew the store's license to sell alcohol. An undercover buy in February 2013 yielded synthetic marijuana.
A warrant was served in April and the store was ruled a public nuisance in a civil case Sept. 5 before Common Pleas Judge Frank Fregiato. Fred Fryman owns the business.
On Wednesday, McNamara said the business has been in operation for more than 20 years with 20 full-time employees and without nuisance issues for months. He asked what benefit was served by shutting it down with no ongoing nuisance. He said search warrants were not executed until months after the Shadyside establishment and other businesses were raided in the course of a day. He said this was because the initial lab results from the purchases of Fred's Party Center were negative. He reviewed objections to the admission of test results.
Payer said there was no demand for testimony of lab personnel. Undercover buyers testified that they asked to purchase fake marijuana.
Drug Force Commander and Martins Ferry Police Chief John McFarland said he was in agreement with the state and with Fregiato's ruling that Fred's Party Center and others were a nuisance for engaging in felonies.
"They were all given letters from the prosecutor saying their products were illegal and continuing to sell them would result in legal action," he said. "They ignored the letters and continued to sell them. Because of that, they're in their current situation."
He added he expected the case to be presented to the grand jury in the future, and law enforcement will take action when any complaints are heard.
Vukovich said a ruling may be made in three-to-five weeks.